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House has right to ask for Afghan detainee documents

CTV.ca News Staff
Published Tuesday, April 27, 2010 8:41PM EDT

The Speaker of the House of Commons has ruled that opposition members have the right to ask for uncensored Afghan detainee documents, and MPs must now decide how to view the records without jeopardizing national security.

It took Peter Milliken roughly 45 minutes to explain his historic decision, citing precedents that dated back more than a century.

"It is evident to the chair that all members take seriously the sensitive nature of these documents and the need to protect the confidential information they contain," he said, concluding that "it is within the powers of the House of Commons to ask for the documents sought."

Milliken, who is the longest-serving Speaker of the House of Commons in Canadian history, said MPs have two weeks to create a system for viewing the sensitive detainee records.

"Is it possible for the two sides, working together in best the interest of the Canadians they serve, to devise a means where both their concerns are met?" he asked.

"Surely that's not too much to hope for."

He suggested that MPs look to other countries for inspiration. MPs could be sworn in before viewing sensitive documents, as other governments have done.

If the House can't reach an agreement, he said he will rule on a motion regarding how to proceed next. That could lead to a vote on whether to find Defence Minister Peter MacKay, Foreign Affairs Minister Lawrence Cannon, Justice Minister Rob Nicholson, and others in contempt of Parliament.

The documents in question are believed to contain information related to the alleged torture of Afghan prisoners who Canadian soldiers handed over to local authorities in Afghanistan.

Opposition members ordered the government to hand over the documents in December, insisting that it was their right to see them. But the Tories refused to do so, citing national security concerns and arguing that parliamentarians had no right to demand to see any document they wish.

Instead, the Conservative government released heavily-censored versions of thousands of pages of detainee-related documents, which failed to appease the concerns of opposition members.

According to Milliken's ruling, the government's refusal to supply uncensored documents on the detainee issue contravenes the privilege of the House.

The right of MPs to access such documents touches on the "very foundations" of Canada's parliamentary system, he said.

Milliken also looked at whether the government had satisfied the opposition request by tasking former Supreme Court Justice Frank Iacobucci with conducting an independent review to determine which documents can be made public.

But he decided that Iacobucci is essentially working on behalf of the Minister of Justice and the government.

Milliken is widely considered a master of parliamentary procedure. As a university student he wrote a thesis about question period, and he has immersed himself in such topics ever since.

Ned Franks, a leading parliamentary scholar and professor emeritus at Queen's University, described Milliken's decision as "a ruling in moderation."

It highlighted "that Parliament has to recognize the government's position, and the government has to recognize Parliament's -- and they have to work out a solution," Franks said on CTV's Power Play. "I like that."

It's not clear what would happen if the Conservatives and the opposition parties fail to reach an agreement on how to view the documents, he said.

Milliken could refer the matter to the Supreme Court of Canada, Franks said. Depending on how the negotiations proceed, he added, opposition parties also risk being found in contempt of Parliament.

"Samuel Johnson once said that the prospect of hanging concentrates the mind wonderfully," Franks said, referring to the 18th century British writer.

"I'm hoping that both sides of Parliament will look at this as a prospect of hanging if they don't come to an agreement."

With files from The Canadian Press

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Speaker of the House of Commons Peter Milliken delivers his ruling on whether the government's refusal to hand over documents on Afghan detainees violates the privileges of MPs in the House of Commons on Parliament Hill in Ottawa, Tuesday April 27, 2010. (Adrian Wyld / THE CANADIAN PRESS)